Disciplinary Proceeding and Right to a Fair Hearing

The applicability of the right to a fair trial/proceeding provided under Article 6 of the European Convention on Human Rights (“Article 6”) was recently the subject of a decision rendered by the Medical Board’s Higher Disciplinary Council (See decision No. 03/17 of 15 February 2017).

In this case, dentists contested the penalty imposed upon them suspending their right to practice dentistry. They deemed that the Medical Board’s action was unfair and biased, and thereby invalidated the proceeding. The Higher Disciplinary Council thus conducted a review to verify whether the right to a fair proceeding was applicable in disciplinary proceedings.

Under Article 6, para. 1, “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The second paragraph enshrines the presumption of innocence while the third paragraph “contains a list of specific applications of the general principle set forth in paragraph 1” (ECHR, Meftah et al. v. France, 26 juillet 2002, Petition Nos. 32911/96, 5237/97 and 34595/97).

The Article 6 guarantees are thus applicable in civil and criminal proceedings, but their applicability in disciplinary proceedings had not been adjudicated under domestic law.

Here, the Higher Disciplinary Council deemed that while the administrative authority in charge of the disciplinary proceeding is “not formally required to comply with Article 6”, it remains “obligated to observe general legal principles, such as the principle of a fair proceeding, the right to a fair hearing, or the general principle of impartiality, even in the absence of express text in that regard”. To us, the phrase “not formally required” seems adapted to the ECHR’s position, given that it deems that not all disciplinary proceedings are generally subject to the Article 6 guarantees unless there are specific circumstances (See Le compte, Van Leuven and De Meyere v. Belgique of 23 June 1981, petition Nos. 6878/75, 7238/75). In that case, a Medical Board disciplinary proceeding against doctors, the Court reiterates the two criteria permitting Article 6 applicability in civil proceedings, (i) a dispute (ii) related to a civil right or obligation, and concludes that Article 6, para. 1 applies.

In the case at hand, the Higher Disciplinary Council points out the Medical Board’s “relentlessness in taking evidence” when even years of investigation did not establish disputable facts and its “efforts to fill an initially empty file”. Based on these factors, it deems that the Board’s conduct is “intolerable and undignified”.

The Higher Disciplinary Counsel thus holds, in maintaining the extension of the Article 6 guarantees based on the facts presented to it, that the “unfair and biased conduct of the Medical Board”, particulary in regard to Article 2 of the Law of 8 June 1988 on the Medical Board, specifying that it is charged with “looking after the preservation of honor”, invalidates the proceeding and thus in reviewing the decision declares the petitioners’ claims well founded and the proceeding extinguished.

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